Year after year it is responsible for saving countless
lives, yet its occurrence is as rare as public understanding and appreciation
of it. The popular misconception sees whistleblowers as malingerers, malcontents
or incompetents, who invent tales of wrongdoing or grossly exaggerate in
order to protect their jobs or to get revenge against their employer. In
reality, most whistleblowers are overachievers with excellent histories
of performance before they felt compelled to blow the whistle.
In nearly all cases whistleblowers are responding
to a moral dilemma that is thrust upon them, not one they seek or anticipate.
Usually the dilemma pits the interests of their boss or employer against
doing what is dictated by principles of morality or professional responsibility.(3)
Nine out of ten -- or more likely, ninety-nine out of a hundred -- workers
choose the safer and easier course, holding their tongue when faced with
such a dilemma. Remembering where their bread and butter comes from, most
simply persuade themselves that there is no dilemma.
Those who pursue the principled course start out
naively believing that they will be appreciated for "doing the right thing."
But once they encounter a hostile reaction from their supervisor or co-workers,
most potential whistleblowers back down, minimizing the risk to themselves.
Those who continue, convince themselves that once "upper management" (or
the administrator, or some other figure of authority) learns of the situation,
the problem will be addressed and they will be vindicated.
The true whistleblower is the one who, even after
coming to understand that upper management is not going to save him or
her, remains unrepentant and even defiant. What follows inevitably is harassment,
persecution, and vilification. This is not the path for a malingerer.
Americans pay billions of dollars every year to
safeguard the public health and safety through police protection, inspection
of
food and other products, and enforcement of laws and regulations in other
areas ranging from the environment to transportation and the workplace.
Yet one whistleblower can frequently accomplish more good than a roomful
of bureaucrats. Here are some examples:

In Niagara Falls, New York in 1978, controversy was
raging over the Love Canal. Countless tons of toxic, chemical wastes had
been dumped years before in the abandoned canal by Hooker Chemical Company.
A school had been built alongside the dump site and housing developments
had been built around it. Chemicals from the canal had leached into lawns,
playgrounds, and even into the basements of houses in the neighborhood
which was, in the words of New York State's commissioner of health, "a
great and imminent peril to the general public residing at or near the
site." Frightened citizens were demanding government action while the government
did what governments usually do --- procrastinated--- asking for more time
and more studies. An atmosphere of mutual contempt and distrust had grown
up between the homeowners and the state government.
Into this scene stepped Dr. Beverly Paigen, a biologist,
geneticist, and cancer research scientist at the Roswell Park Memorial
Institute, a world famous research hospital in Buffalo and part of the
New York State Department of Health (DOH). The health concerns of the Love
Canal citizens were the very subject of her research interests, which were
to study family patterns of genetic reaction to chemicals and to develop
easy, efficient methods of assessing health hazards from environmental
chemical exposure.
The Love Canal homeowners, for their part, needed
scientific expertise to give them credibility in pursuing their case with
the government's scientific bureaucracy. As a result, a close working relationship
developed between the homeowners and Dr. Paigen. She became their scientific
advisor and consultant and the homeowners in turn became the source of
data, as well as data gatherers, for her research. This, of course, did
not sit well with government authorities, who were trying to keep the lid
on all scientific data and analysis.
Soon, Dr. Paigen found herself being subjected to
petty harassments. Since she was a senior scientist engaged in basic research
at the institute, she alone decided the areas of her research and the government
could not call her off, but they could make her life miserable in many
other ways including a state tax audit and the denial of a research grant
which she would have normally received. Nevertheless, she persisted in
her mission and freely expressed her findings and expert opinion to the
health bureaucracy as well as to the public, the press, the governor, and
the U.S. Congress.
Eventually, the state followed Dr. Paigen's recommendations
and relocated all the Love Canal residents. Moreover, although the state
health bureaucracy had criticized her research, they ended up adopting
its. results as their own. Her larger contributions, however, were to focus
national attention on the health hazards of toxic waste, and to join the
chorus of public advocates responsible for the passage of federal "Superfund"
legislation. Along with the persistent citizens of Love Canal, we owe her
our deepest gratitude.

Dr. Adrian Gross was a veterinary pathologist and
a senior science advisor with the EPA pesticides office. Both at EPA and
at his previous position with the U.S. Food and Drug Administration he
frequently spoke out against drug and pesticide manufacturers when he felt
their products were unsafe, and their health research shoddy.
Dr. Gross ran afoul of his own agency in 1982 when
he wrote a memo accusing his superiors of illegally aiding two major chemical
companies in their efforts to register the pesticide permethrin, which
he and other EPA investigators had found to cause cancer. A week later
he was transferred to an obscure division where he no longer had access
to the agency's health and safety files. Moreover, his colleagues were
instructed not to speak with him.
Despite the petty harassments he suffered throughout
his government career, Dr. Gross continued his life-saving work. Up until
his death in 1992, he also frequently appeared as an expert witness in
product-liability lawsuits against chemical companies and he continued
to speak out whenever he felt the government was needlessly putting the
public health at risk, and encouraged his colleagues to do likewise.
Among the chemicals he had blown the whistle on
at one time or another are the drugs: DES, flagyl, aldactone, aldactazide,
bendectin, enovid, ovulen, aspartame (artificial sweetener) and several
pesticides -- aldrin, dieldrin, ethylene dibromide, malathion, and malaoxon.
His example of courage and commitment continues to inspire other scientists
to, in Gandhi's words, "speak truth to power."

The Alyeska Pipeline Service is the company that
operates the Trans Alaska Pipeline. It is owned by a consortium of oil
companies including Exxon, British Petroleum and Atlantic Richfield. In
the early 1980's, Charles Hamel, an oil broker, got involved in a business
dispute with Alyeska. Hamel felt he had been cheated and as a result began
leaking information about Alyeska's environmental wrongdoing.
Sympathetic workers at Alyeska, who were disturbed
by their employer's harmful environmental practices but were fearful of
their jobs, began passing incriminating internal Alyeska documents to Hamel
who, in turn, passed them on to regulators and Congress. Eventually Hamel
accumulated a sizable network of fifteen whistleblowers within Alyeska
and its member companies who had access to information which was not available
to government inspectors and environmental enforcement officials.
This network provided Hamel with information about
violations of the Clean Water Act by Exxon and British Petroleum that resulted
in citations by EPA. They revealed air pollution violations at the Valdez
terminal. They supplied Hamel with documents which showed that the system
for detecting leaks in the Trans Alaska Pipeline was faulty, that the pipeline
was severely corroded, and that neither federal nor state regulators were
adequately monitoring its operations. This material was used in a report
by the U.S. General Accounting Office. Hamel also exposed oil discoveries
which industry was trying to keep secret in order to convince Congress
of the need to drill in the Alaska National Wildlife Refuge.
The network's revelations cost the oil companies
millions of dollars in fines and more millions to correct the environmental
problems. Hamel appeared frequently on television and in Congressional
hearings and his charges were reported in the press all over the world.
In 1990, in an effort to stop the leaks, Alyeska
hired the Wackenhut security agency to spy on Hamel. Wackenhut set up a
bogus environmental organization called Ecolit which offered to help Hamel
pursue litigation against the oil industry, but the real purpose was to
find out who was leaking the documents. Wackenhut agents watched Hamel's
home, picked through his trash, used sophisticated electronic eavesdropping
devices, and obtained his credit, banking and telephone records, as well
as personal information about his family. They even hired women to entice
Hamel into revealing his sources.
However, with information supplied by disgusted
Wackenhut agents at great personal risk, Hamel sued Alyeska, Wackenhut
and Exxon for invasion-of-privacy and in December of 1993, they settled
with Charles Hamel for an undisclosed amount, which is reported to be in
the millions. While Charles Hamel may not have been primarily motivated
by a moral desire to prevent Alyeska's defilement of the Alaskan environment,
his anonymous sources clearly were so motivated and Hamel earned their
and our gratitude by protecting those sources from Alyeska's wrath at great
risk to himself.

Greater Legal Protections Needed

Congress has recognized the unique position of workers
to monitor and report violations of environmental law, noting in its conference
report on the 1977 Clean Air Act: "...the best source of information about
what a company is actually doing or not doing is often its own employees...."(10) The examples above demonstrate that whistleblowers
deserve to be revered and encouraged, yet whistleblowers more often encounter
hostility than support. Their only recourse may lie in "whistleblower protection"
laws, which offer little more than the possibility of hanging on to one's
job, usually in a diminished role while subjected to ongoing harassment
or abuse.
In the environmental arena, Congress has included
nearly identical whistleblower protection provisions in six laws: the Clean
Air Act; the Safe Drinking Water Act; the Solid Waste Disposal Act; the
Water Pollution Control Act; the Toxic Substances Control Act; and the
Comprehensive Environmental Responses, Compensation, and Liability Act
(CERCLA or Superfund). The provisions in these six acts were crafted to
encourage and protect both government and private industry employees, who
report violations of environmental, health and safety regulations. Congress
also mandated that employees who blow the whistle should be protected from
retaliation, harassment, intimidation, and other forms of discrimination
by their employers.
The laws were intended to cover Americans from all
walks of life. Among those covered have been a painter who cooperated with
an investigation into toxic dumping,(11)
a teacher who complained about asbestos in a school house,(12)
an engineer who filed reports regarding a shipyard's noncompliance with
hazardous waste regulations,(13) and an
employee who told a newspaper reporter about the discharge of sludge into
the Cedar Rapids.(14)

Serious Defects in the Laws

However, while the intent of these six laws was good,
there are several serious defects which almost undo the good intentions.
The laws' two most significant defects are the extremely short 30-day statute
of limitations and the fact that almost nobody is aware that they exist.
The National Whistleblower Center summarized the problem in its 1991 petition
to the EPA urging amendment of the provisions:" Confusion about where to
file a complaint as well as ignorance of the 30-day statute of limitations
has resulted in the dismissal of numerous whistleblower complaints filed
under the six acts, and has defeated congressional purpose behind the acts."
For example, in 1990 there were only eight federal
environmental whistleblower complaints docketed for hearing under these
six acts in the entire United States. Many cases are dismissed for failing
to meet the 30-day limit because the complainant was unaware that the laws
existed, let alone the strict filing requirements.
Whistleblowers generally do not even learn about
the existence of relevant whistleblower protection laws until the deadline
has passed. The "clock" starts the day an employee is threatened with any
adverse action for reporting violations to authorities. In most cases that
go forward, complainants deplete their own savings in legal battles, while
out of a job and blacklisted.
In a 1981 whistleblower case under the Toxic Substances
Control Act, the U.S. Secretary of Labor attempted to broadly construe
the 30-day filing period in order to allow some employees who had good
cause for missing the filing period to still be protected. However, the
U.S. Court of Appeals rejected this reasoning and dismissed the case, finding
that the 30-day period must be strictly construed. Since that time, all
other federal courts which have reviewed this issue, as well as the Department
of Labor, have followed that precedent and adopted the strict interpretation.
The second major problem is the almost universal
ignorance within the workforce and among environmental organizations, labor
unions and even the legal community itself, regarding the extent of whistleblower
protection available under the six acts. Even knowledgeable EPA whistleblowers
who were union officials or were attorneys or investigators in the office
of the Inspector General were unaware of these provisions. Likewise, awareness
of state whistleblower protection laws, which often have longer statutes
of limitations and other benefits unavailable under federal law, is all
but nonexistent.
Other problems with the six federal acts are: the
ambiguity in the definition of protected activities which has given rise
to a split in the U.S. Court of Appeals; the fact that the pesticide laws
administered by EPA do not have any whistleblower protection provision;
and the long delays encountered in cases brought before the Secretary of
Labor.
This last problem is especially galling. For example,
Joseph Guttman, whose position as head of a laboratory at a major water
treatment plant in New Jersey had been eliminated, filed a whistleblower
complaint with the U.S. Department of Labor in 1985. The Secretary of Labor
did not issue a final and enforceable order requiring Mr. Guttman's reinstatement
until seven years later in March of 1992.(15)
The infamous delays in the issuance of final orders by the Secretary of
Labor are unfair to both complainant and employer, typically taking three
to six years to render a final order upholding a whistleblower claim. Justice
delayed is still justice denied.

Proposals to Strengthen whistleblower Protections

A similar situation previously existed in the whistleblower
provisions of the laws administered by the Nuclear Regulatory Commission.
In October of 1992, Congress remedied these problems for nuclear whistleblowers
with amendments to the Energy Reorganization Act. This law enlarged the
statute of limitations from 30 to 180 days and required employers to post
notice of the remedies available to whistleblowers in the workplace. To
speed up justice, the amended Energy Reorganization Act provides that,
if an employee wins before an administrative law judge, he or she is entitled
to immediate reinstatement pending the review of the judge's decision by
the Secretary of Labor and the Court of Appeals. As a result, many more
serious flaws in nuclear power plants may now be brought to light. Already,
seven times more employees in the nuclear industry report wrongful activity
than workers reporting under the six environmental laws.
Nevertheless, Congress has not yet seen fit to make
the same changes to the six environmental laws. The following simple and
technical modifications of these acts would make them more effective and
consistent with similar employee protection provisions contained in other
federal legislation.

Extend the statute of limitations to 180 days.

Require posting in the workplace of the laws and information about where
to file a complaint.

Provide a uniform definition of "Protected Activityt' under
the six acts in order to promote consistency with other laws.

Provide coverage for all employees who work on projects regulated or concerning
the responsibilities of the EPA.

Eliminate administrative delays in the resolution of complaints.

The National Whistleblower Center has also advocated
that these changes be included in the legislation currently being considered
to elevate the EPA to cabinet-level status, as a new Department of the
Environment.
Either way, correcting shortcomings in the laws
protecting environmental whistleblowers and their enforcement is not merely
a matter of compassion or individual rights. It is also vital to the public
interest. These courageous and competent souls represent precisely the
kind of integrity and leadership needed in top management and research
positions in government and industry. Whistleblowers are usually creative
and efficient achievement- oriented workers -- the kind who are concerned
that things be done right. In addition, they have the moral fiber to stand
up to corruption and attempts to cut corners or cover up mistakes and dangers
to the public.
Whenever a whistleblower is removed, he or she is
replaced by someone willing to tolerate such corruption and abuse in order
to get ahead. This serves not the public interest, but only that of corrupt
or incompetent officials.
It is not so much the whistleblower who needs protection, but the
public that needs the protection or the whistleblower.

About the Authors

William Sanjour

Mr. William Sanjour is a long-time employee of the
U.S. Environmental Protection Agency
(EPA) and an active whistleblower since 1979. He has been an Environmental
Research
Foundation associate since 1991.
In the late seventies, Sanjour fought from within
the EPA to make the Resource Conservation and Recovery Act work in the
true spirit of its regulations, some of which he drafted. The Agency responded
by transferring him to a position with no duties. He successfully fought
that transfer and in 1980 was made head of the Hazardous Waste Implementation
Branch.
He continued to expose Agency abuse, testifying
against EPA policy in Congressional hearings and actively helping grass-
roots environmental groups. Sanjour's reward for years of dedicated environmental
service has been harassment and a succession of superficial job assignments.
Since 1989, he has had no substantive assignments.

Stephen M. Kohn

Mr. Stephen M. Kohn is an attorney in Washington,
D.C. specializing in whistleblower law and the chairperson of the National
Whistle- blower Center. He is the author of numerous books and articles
including The Whistleblower Litigation Handbook, The Lawyers Guide to
the Rights and Responsibilities of Employee Whistleblowers and Protecting
Environmental and Nuclear Whistleblowers: A Litigation Manual. The National Whistleblower Center is a nonprofit
organization established to provide whistleblowers with legal representation
that they could not obtain elsewhere. The Center also educates the public
to the existence of legal protections and provides training materials and
workshops on how to assist nuclear and environmental whistleblowers.
The National
Whistleblower Center is located at 517 Florida Avenue, N.W., Washington,
DC 20001-1850; telephone: (202) 667-7515.